Pangoulias v Minister for Health - [2011] WADC 231

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PANGOULIAS -v- MINISTER FOR HEALTH [2011] WADC 231

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 7 NOVEMBER 2011

DELIVERED : 18 JANUARY 2011

FILE NO/S: CIV 2791 of 2010

BETWEEN: TBA PANGOULIAS
Plaintiff
AND
MINISTER FOR HEALTH
First Defendant

Catchwords:

Practice - Western Australia - Practice under the District Court Rules 2005 - Application that the action be no longer inactive - Practice under the Rules of the Supreme Court of Western Australia1971 - Application to extend validity of writ

Legislation:

Nil

Result:

Application for action to be no longer inactive successful
Application to review validity of writ refused

Representation:

Counsel:

Plaintiff: Mr T Hammond
First Defendant : Nil

Solicitors:

Plaintiff: Shine Lawyers
First Defendant : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HARMAN: On 10 September 2010, by what I take to be his next friend, the plaintiff issued a writ against four defendants.
According to the terms of a notice issued to the parties dated 12 September 2011, because no document had been filed in the preceding 12 months, on 10 September 2011 the action was put on the list of inactive cases. Under r 44F(3) of the District Court Rules 2005 a case may be removed from the list if the court is satisfied that it will be conducted in a timely way or for any other good reason. The plaintiff has applied and he carries the onus of persuasion that it is appropriate to do so.
Only the first defendant has been served with the writ. The first defendant has not responded to the application, did not attend the hearing and has not communicated to the plaintiff its attitude to the application.
On an interlocutory application, submissions may be supported by hearsay brought within the scope of O 37 r 6 of the Rules of the Supreme Court of Western Australia 1971. The deponent of each of the three affidavits in support of the application is the solicitor with the conduct of the action. She introduces her evidence as follows:
The facts deposed to in this Affidavit are within my own knowledge, unless otherwise stated. If the facts are not within my knowledge, I believe the facts asserted to be true.
By that formulation she has overlooked the need to identify the source of information and found the belief expressed. To attach to an affidavit a document with no evidence to bring its content within the scope of the rule serves no useful purpose: it is for the deponent, not for the court to qualify information as evidence. At none of the points at which particular information is disclosed is it qualified as evidence.
The result is that the only evidence is that of the activity of the solicitor. There is no evidence of the plaintiff's instructions or any other indication that it is his intention to conduct the action in a timely manner.
The evidence of activity in the period commencing four days prior to the expiration of the period the subject of the notice may be taken as an indication of the plaintiff's commitment to the timely conduct of the action. However it is also open to consider that his motivation was only in response to the imminent lapse of the validity of the writ; and that to leave serving the first defendant and locating the third defendant until the last four days of a period of one year does not resonate with satisfaction of the first test expressed in the rule. Ultimately I consider that the plaintiff's apparent inactivity for 361 days is overwhelming.
In the claim against the first defendant it is conceivable that the plaintiff had also been motivated to serve the writ as the result of the receipt of an opinion. However it is not possible to reach any conclusion as there is neither evidence of its receipt nor of its impact. The only action proposed by the plaintiff is that upon filing an appearance the first defendant would be provided with the opinion. According to a later affidavit the solicitor is aware of the appearance however there is no evidence that the opinion has been provided. In any event the prospect that it will be provided does not provide any solid foundation for the proposition that the action would be conducted in a timely manner.
Apart from the evidence of activity undertaken by the solicitor the plaintiff can rely on what speaks for itself.
Despite the restriction imposed upon the filing of documents by r 44E, the plaintiff's notice of discontinuance against the second and fourth defendant and the appearance of the first defendant have been filed. There is no reason to consider that the filing of either document speaks to a commitment by either party to the timely conduct of the action.
As for the application itself, there is no evidence of receipt of the notice or when it came to the solicitor's attention. It is relatively easy to consider that the difficulty posed by the expiration of the validity of the writ would have been a more important consideration. The application was filed 18 days after the validity of the writ had expired. In my opinion it is not a significantly long period but equally it is not sufficiently short as to suggest that it reveals commitment by the plaintiff to the timely conduct of the action.
By the application the plaintiff also seeks an extension of the validity of the writ from 11 September 2011 to 10 November 2011 and to substitute for the third defendant the executrix of his estate. In a letter dated 29 September 2011 that accompanied the application, a listing was sought on or prior to 7 October 2011. It is open to consider that having sought a period of a little over four weeks to attend to service on the third defendant; the plaintiff would proceed in a timely manner. In the context of inactivity, at least by reference to the datum expressed in the notice and the limited evidence of activity of the solicitor, to propose to serve the defendant within such a period may be considered to be a significant change. By a more objective standard, in circumstances where there is no indication of any difficulty in attending to service, in my opinion to propose to take that long to undertake what are essentially administrative tasks, falls short of demonstrating an intention to proceed in the action in a timely manner. In making that assessment I recognise that the rule providing for an extension of validity of a writ provides scope for extension for a period of up to one year. In my opinion, in the context that I have described, the plaintiff could expect to obtain nothing more than a short extension to facilitate service. My judgment is that any extension granted would be for a period substantially less than that proposed.
Although not the subject of evidence, the plaintiff's counsel suggested that the plaintiff has contemplated proceeding against the third defendant only if a policy of insurance would respond. In all likelihood such an evaluation would be undertaken sooner rather than later. In my opinion the suggestion raises the prospect of an impediment to progress.
Whilst there is scope to draw inferences that may assist the plaintiff in the application, in circumstances where a party with the onus has either failed to found submissions or give evidence of difficulty in doing so, I ought to be reticent to do so especially where competing inferences are open.
There is no evidence that the solicitor undertook the task mandated by r 44D to notify her client of the listing and of related matters. According to the rule, the time within which the task is to be performed is 'as soon as practicable'. I take it to be the case that in the absence of evidence of particular difficulty, the period between receipt by the solicitor of the notice and the date the application was filed would have been sufficient for its performance.
In considering whether I ought to be satisfied that the action would be conducted in a timely manner, the absence of evidence of intention of the plaintiff is significant. On my assessment of the evidence there is no basis to conclude that the plaintiff has brought a case within the scope of the first test provided by the rule.
The second basis for removing an action from the list of inactive cases is that there is good reason to consider that the action be no longer inactive.
Because firstly, the first defendant was not served until the day prior to the expiration of the period the subject of the notice; secondly, none of the other defendants have been served; and thirdly, the writ issued with an indorsement, as there was no document that would be required to be filed, in my opinion, there could be no basis for an expectation that any document would be filed within the period. Whilst I have no difficulty with the proposition that the failure to file a document within a period of 12 months justifies the conclusion of inactivity, where the question is whether the action should be removed from the list of inactive cases, in my opinion it is significant that there was no document to be filed. In order to make my assessment clear, the fact that the writ issued close to the conclusion of the limitation period; that the first defendant was served at the conclusion of the period of validity of the writ and the third defendant, not at all, are no more than points of interest: I am not dealing with an application that turns upon the likely prejudicial consequences of delay on the defendants.
According to the record of the registry on 8 September 2011 the plaintiff lodged the notice of discontinuance against the second and fourth defendants. As the relevant defendants had not been served, the rules do not require such a notice to be filed. I apprehend that it was filed simply to signal to the registry the conclusion of those features of the action. I could have no difficulty in inferring that by lodging the document the plaintiff intended that it be filed. Beyond handing the notice to a member of registry staff I am not aware that there would be anything required of the plaintiff to the end that it be filed. Indeed in all probability the plaintiff would have been bemused that the document was not then accepted as having been filed. Had it been filed either at the point of the transaction or some other time within the next two days there would have been no basis for the action being listed as inactive.
In my opinion regardless whether I was persuaded that the case will be conducted in a timely way, there is good reason for taking it off the list of inactive cases.
As for the application to amend the writ the court would not so order in the absence of any evidence of death of the third defendant. I accept that there is correspondence attached to the solicitor's affidavits from a firm of solicitors that purports represent the estate of the third defendant. Its content is not qualified as evidence. As no appearance has been filed, nothing that they put forward assists the plaintiff.
Turning to the application to extend the validity of the writ, according to O 7 r 1(2) of the Rules of the Supreme Court of Western Australia, there is an unfettered discretion to extend the validity of a writ beyond the initial period of 12 months. In effect it is for the plaintiff to persuade the court that it is appropriate to enable him to proceed in the action against the third defendant.
The reason for the mechanism expressed in O 7 r 1 is to discourage the practice of withholding service. I am satisfied that there is sufficient evidence to justify the conclusion that until four days prior to the expiration of the validity of the writ the plaintiff had not taken any step to serve the defendant and that there is no evidence to support any different conclusion. Indeed for the balance of the period its validity there is no evidence that bears upon the subject of service of the writ at all. In a context where the only prospects of the plaintiff obtaining damages for his alleged loss are out of the plaintiff's hands I consider that silence opens the prospect that the plaintiff did indeed withhold service of the writ.
A useful datum for analysis is provided by the relevant feature of the common law retainer. My understanding is that under such a relationship, service would not depend upon discrete instructions from the client, but rather, that upon the issue of the writ, the solicitor would attend to service within a reasonable period of time. What would be considered to be a reasonable period would depend upon the circumstances of the case. Whilst there is reason to consider that the extent of the initial period of validity would inform the answer to that question, I would suggest that in circumstances where there is nothing to suggest any reason to not proceed with service; the process would be embarked upon in the early part of that period.
The firm represented by the deponent issued the writ. There is no evidence as to when the firm was instructed to do so. Because the expiration of the period of limitation was then imminent and there is nothing to suggest that until four days prior to the expiration of the period of its validity that any step was taken to locate the defendant, it is open to consider that the writ was issued to preserve the opportunity to bring a claim. The fact that after issuing the writ the plaintiff discontinued against the second and fourth defendants provides some support for that prospect.
The order of the State Administrative Tribunal of 30 April 2010 attached to the consent of the next friend records that proceedings before the tribunal had been on foot since 23 April 2008. It reveals that under an application lodged on 5 March 2010, the tribunal had conducted a review of its determination of 23 April 2008, with the result that it confirmed the appointment of the next friend as plenary administrator of the estate of the plaintiff. That detail opens the prospect that over the period from at least March 2010 but perhaps as early as April 2008 the appointee had a responsibility and also the opportunity to take advice in relation to the prospect of bringing a claim or claims.
It is open to consider that the detail recorded in the order of the tribunal reveals the prospect that prior to the issue of the writ, the plaintiff and his advisors had already considered and assessed the viability of the claims put against the defendant in the writ. There is nothing to suggest that late initial instructions had been received by the firm.
The solicitor provides what I take to be detail of allegations that are proposed to be made against the defendant. They run from par 10(a) to par 10(p) of her first affidavit. It provides some insight into discrete aspects of medical procedure, periods of time between events and details of failure to act by reference to procedure and consequence. In my opinion a solicitor could expect that it would pass scrutiny as sufficient allegations or particulars of breach for the purposes of some or all of the causes of action the subject of the writ.
If this had been a case where late initial instructions had been received the observation that I will make is that the point in time at which the detail expressed in par 10 or a substantial part or parts of it had been accumulated would provide an indication of when the solicitor could have been expected to serve the defendant.
It is possible that the detail had not been drawn together prior to the making of the application. Even if that were the case, it would still have pre-dated the receipt by the solicitor of an opinion obtained from a consultant neurologist. I am not informed when that when the opinion was received, but I take it to be the case that it was after 10 October 2011 and before 24 October 2011. I accept that by 20 September 2011 the writ was then already invalid; however there is reason to consider that the detail had been at least available to the plaintiff independently of the commissioning of the report and conceivably prior to it being commissioned. My point is that there is there is a prospect that at a time before the end of the period of validity, the plaintiff had been in a position to articulate significant features of a claim or claims against the defendant. And there is reason to consider that the purpose for commissioning the report was other than to the end of evaluating whether there was scope to bring the case or cases proposed.
There is a point at which the imminent conclusion of the period of validity of the writ would admit the proposition that the time remaining would put at risk the prospect that service in the time remaining could be achieved. The information relating to the defendant on the writ is not evidence but it reveals that the plaintiff was aware that the defendant is a medical practitioner operating from identified rooms that could be expected to be open during business hours. In my opinion that information would neither add to nor detract from the prospect that on any given day the defendant may not be located for the purpose of personal service and that to leave locating him for that purpose until the last four days of the period of one year would generate a significant measure of risk that it would not be achieved.
In my opinion because of the responsibility that would be generated under the common law retainer to a plaintiff; for the solicitor to leave the process of service until four days prior to the expiration of the period of validity, would put her in the position where on an application to renew the validity of the writ, it would be reasonable expect that she would accept some measure of responsibility for the need to apply. The same conclusion is open regardless of the basis of the relationship by simply considering the cost associated with such an application and the likelihood that it would not be recoverable party and party.
Because of the lack of any such evidence, in my opinion it is more likely than not that the plaintiff had instructed his solicitors to not serve the third defendant and at a late stage in the period of validity had instructed them to do so. Those prospects are given some support by the fact that at a point four days prior to the expiration of the validity of the writ none of the defendants had been served and that at the same time as the solicitor sought to locate the third defendant, he discontinued the action against the second and fourth defendants and served the first defendant.
In my opinion the fact that there had been no communication between the plaintiff's solicitors and the third defendant tends to inform the prospect that for a substantial part of the period of validity of the writ the solicitors were without instructions to serve that defendant.
The fact that the solicitor asserts that the quantum of any successful claim will be substantial provides a basis to consider that she would have previously been so aware. In my opinion, the significance of her assessment is that where resources were limited it is likely that the action would be given a measure of priority. In the absence of any evidence of there being reason to defer service, the value of the case to the client would tend to suggest that the reason for not proceeding to serve the writ at an earlier time in the period was due to the need for instructions to do so.
Ultimately it would be unsafe to come to any conclusion on the question why the writ was not served within the period of its validity. Be that as it may there is no reason to consider that the failure to serve the third defendant was due to mistake or oversight. There is no reason to consider that any instruction to withhold the writ was issued for a reason that would bear upon the exercise of discretion.
The lack of evidence also raises the prospect that over a relevant and significantly long period of time the plaintiff would be revealed as having been content that the prospect of recovery under the writ simply fades away. I accept that in light of the fact that he has no capacity, to view the plaintiff in that light may be considered to be unfair, however once he has availed himself of the mechanism provided by O 70 of the Rules of the Supreme Court, for his engagement in an action, in the absence of evidence to suggest that it is appropriate to do otherwise, in my opinion there is no reason why this plaintiff should be considered to be any different to any other. The fact that by the causes of action the plaintiff seeks damages for loss arising from personal injury bears no particular weight. The important consideration is that the plaintiff has commenced an action based upon those causes. In my opinion on an application such as that before me, there is no reason why the plaintiff should be treated any differently than had he now been seeking to recover a debt. I accept that there is scope to consider that by the action the plaintiff may seek to demonstrate that the third defendant is responsible for his disability; however the court only makes such determinations in resolving disputes within the context of claims brought before it.

It is open to consider that there are myriad factors that would bear upon an exercise of discretion, however in my opinion over the course of dealing with the want of evidence I have touched upon those of significance to the application. On my analysis of the evidence the only considerations generated have at best been neutral for the plaintiff. There is no feature of what is before me that appeals as justification for an exercise of discretion. On an overview of the application the applicant does no better.
In my opinion the lack of evidence as to why the plaintiff made no attempt to serve the defendant within the period of 12 months after the issue of the writ brings the result that I ought not be persuaded that the court should exercise discretion in his favour.